Defalcation

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This article is about the financial crime. For the bodily process, see Defecation.

A defalcation is an amount of funds misappropriated by a person trusted with its charge; also, the act of misappropriation, or an instance thereof. The term is more specifically used by the United States Bankruptcy Code to describe a category of bad acts that taint a particular debt such that it cannot be discharged in bankruptcy.[1]

Defalcation occurs when a debtor commits a bad act while acting in a fiduciary capacity.[2] The classic example of defalcation is when a trustee recklessly invests trust funds and loses the money. If the beneficiary wins a judgment against the trustee, and the trustee files for bankruptcy, the debt (the judgment) cannot be discharged in bankruptcy because the debt was the result of a defalcation.

Defalcation only applies when a debtor is acting in a fiduciary capacity. To constitute a defalcation, the conduct involves a degree of culpability that is greater than negligence, but the act does not need to rise to the level of a "fraud" under common law. Defalcation requires a showing of conscious behavior or extreme recklessness.[3]

The term is used in legal proceedings other than bankruptcy to refer more generally to embezzlement; it is often used in the context of the title insurance business. A title agent who misuses funds intended to be used to close insured transactions is said to be involved in a defalcation. Many title insurers have their own "defalcation units."

Etymology[edit]

Defalcation literally means "cutting off (with a falx "sickle").

The term is from Latin, and is analyzed as de- "off" + falx "sickle" + -tion "act of", hence literally "cutting off with a sickle". There is also a verb form, "defalcate" – see Wiktionary for further details.

References[edit]

  1. ^ US Bankruptcy Code, section 523(a)(4)
  2. ^ Collier on Bankruptcy, 523.10 (15th ed. rev. 2007)
  3. ^ In re Hyman, 502 F.3d 61 (2d. Cir. 2007)